Strategies

The Michigan Supreme Court Announces Rule for Service of a Limited Liability Company

Authored by: Stephen T. McKenney The Michigan Limited Liability Company Act will celebrate its twenty-eighth anniversary on June 1, 2021.    But despite its age and popularity, the Michigan Court Rules have never expressly provided the manner in which limited liability companies are to be served with legal process.  This will change effective May 1, 2021, with the Michigan Supreme Court’s...

The Michigan Court of Appeals Resolves Choice of Law Conflict in the Enforcement of Forum-Selection Provisions

Authored By: Matthew Smith and Stephen McKenney Choice of law and forum-selection provisions are common inclusions in all manner of contracts.  Most of these provisions rarely register a second thought even in contentious litigation.  But what happens when the enforceability of a forum-selection clause differs under the laws of the State in which litigation is filed, from the laws of the...

Tinsley v Yatooma: The Michigan Court of Appeals Wades Back into the Debate Over Whether and How MRPC 1.8(h)(1) Applies to Arbitration Clauses in Retainer Agreements

Authored By: Jennifer Cupples and Jennifer Grieco Michigan attorneys should already know that Michigan Rule of Professional Conduct (“MRPC”) 1.8(h)(1) prohibits a lawyer from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.  But what, if any, effect...

Implied Waiver of the Right to Arbitrate: How Far is Too Far? The Sixth Circuit Court of Appeals Weighs in on Pre-Litigation Conduct

Authored By: Kenneth Neuman and Matthew Smith That Sixth Circuit law favors arbitration is not newsworthy.  A string of cases could be unearthed with just a few minutes of research in which federal courts throughout the Sixth Circuit have echoed the strong presumption in favor of arbitration. But there are limits to the presumptions that tilt in favor of arbitration when its...

Let the Civility Begin! The Michigan Supreme Court Sets Forth Principles of Professionalism

The Michigan Supreme Court recently issued Administrative Order No. 2020-23, adopting twelve Principles of Professionalism for both lawyers and judges.  The Principles of Professionalism were the product of the Professionalism Workgroup that was formed during Jennifer Grieco’s tenure as President of the State Bar of Michigan.  The Workgroup, chaired by SBM Past-President Ed...

How To Plead Affirmative Defenses – New (Binding) Guidance From The Michigan Court Of Appeals

Authored By:  Jennifer Grieco and Stephen McKenney We have all seen it.  We have all, probably, done it.  We are answering a complaint on behalf of our client, and we need to plead affirmative defenses.  We are all keenly aware of the requirement in MCR 2.111(F) that a “defense not asserted in the responsive pleading or by motion as provided in these rules is...

What Does The Word “Solicit” Mean In A Non-Solicitation Restrictive Covenant?

Authored By: Kenneth Neuman and Stephen McKenney One of the common types of restrictive covenants that Michigan courts have held are enforceable in employment (and other) contracts are so-called “non-solicitation” covenants.  Typically, non-solicitation covenants prohibit an employee (or shareholder, member, director) of a company from soliciting any of the company’s customers (or...

Garnishee Defendants Beware: Court Of Appeals Enforces Garnishee-Liability For Failure To Properly Withhold Funds

Authored By: Matthew Smith Garnishments are common and cost-effective means for judgment creditors to collect monies held by a third-party garnishee.  Upon receipt of a writ of garnishment, the garnishee must prepare a garnishee disclosure and take care to follow the procedures set forth in MCR 3.101.  This may require withholding some or all of the money due to the judgment...

Sanctions for Failure to Admit Request for Admission? Not So Fast!

Authored By: Jennifer A. Cupples We are all familiar with Michigan Court Rule 2.312(A) which allows a party to serve on another party a written request for the admission of  truth of a matter within the scope of MCR 2.302(B) as  it relates to statements or opinions of fact or the application of law to fact, including the genuineness of documents.  The requests are usually...

Attorneys And Clients Beware: Your E-Mail Communications May Not Be Privileged

The Michigan Court of Appeals recently addressed, in a published opinion, the issue of the attorney-client privilege and how it applies to communications between an attorney and client over e-mail. In Stavale v. Stavale, Docket No. 349472 (Mich. Ct. App. June 11, 2020), the Court of Appeals discussed the issue of whether the privilege applies when the client uses an employer-provided e-mail...